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Rajat Kumar Jain & Anr vs Amardeep Singh And Ors on 21 February, 2019

Author: Rajiv Sahai Endlaw

Bench: Rajiv Sahai Endlaw

$~15
*    IN THE HIGH COURT OF DELHI AT NEW DELHI
+    CS(OS) 109/2019
     RAJAT KUMAR JAIN & ANR.                   ..... Plaintiffs
                     Through: Mr. Purshotam Singh & Mr. Chander
                                Sheth, Advs.
                             Versus
     AMARDEEP SINGH AND ORS.                   ..... Defendants
                     Through: None.
     CORAM:
     HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
                     ORDER

% 21.02.2019 IA No.2726/2019 (for exemption)

1. Allowed, subject to just exceptions.

2. The application is disposed of.

CS(OS) No.109/2019 & IA No.2725/2019 (under Order XXXIX Rules 1 and 2 CPC)

3. The two plaintiffs viz. Rajat Kumar Jain and Kuldeep Singh Gill have sued for specific performance of an Agreement of Sale of immovable property with the defendants no.1 and 2 and with respect to which property the defendants no.1 and 2 in turn had entered into an Agreement to Purchase from the defendants no.3 and 4.

2. The plaintiffs, in the plaint have pleaded that notwithstanding the plaintiffs having been ready and willing to perform their part of the Agreement to Sell and having also issued notices to the defendants in this regard, the defendants are not coming forward.

3. However, a perusal of the notices got issued by the plaintiffs at the time stipulated for execution of the Sale Deed shows that the case of the CS(OS) 109/2019 Page 1 of 3 plaintiffs in the notices was that the defendants no.1 and 2 were to re- develop the property of which only one floor i.e. second floor belonged to the defendants no.3 and 4 and the ground and the first floors belonged to others, and the understanding was that the defendants no.1 and 2 will enter into agreements with the owners of the ground and the first floors also and re-construct / re-develop the entire property and sell the second floor thereof to the plaintiffs.

4. However, the Agreement to Sell entered into by the plaintiffs with the defendants no.1 and 2 does not indicate so.

5. Not only so, the plaintiffs in the plaint, through have mentioned issuance of notices but have not disclosed that their stand in the notices was such and that they were calling upon the defendants no.1 and 2 to do something which was not stipulated in the Agreement to Sell.

6. I have enquired from the counsel for the plaintiffs as to why such conduct of the plaintiffs does not amount to concealment of facts from the Court, compelling the Court to go through each and every document, instead of relying on pleading of the plaint under signatures of the advocate and also indicated that the plaintiffs at the time of performance, were not ready and willing to perform their part of, the Agreement to Sell as it is and calling upon the defendants no.1 and 2 to perform other tasks which they had not undertaken to perform under the agreement.

7. The counsel for the plaintiffs states that the plaintiffs as on today are willing to purchase the second floor as it is without even the same being re- developed / re-constructed.

8. With respect to the other aspect, it is stated that it is a drafting error. The counsel for the plaintiffs apologises for the said drafting error.

9. The explanation of a drafting error cannot be accepted. It appears to be intentional in order to conceal the true facts from this Court in an attempt to take an ex parte order.

10. Out of the total purchase consideration of Rs.2.30 crores, the plaintiffs claim to have paid Rs.20 lacs only.

11. In the circumstance, though summons of the suit and notice of the application are issued but no ex parte order is issued.

12. Issue summons of the suit and notice of the application for interim relief to the defendants by all modes including dasti and electronic, returnable on 28th March, 2019.

RAJIV SAHAI ENDLAW, J FEBRUARY 21, 2019 'gsr'..